Declaratory Relief Action Against Defendant Without Ability to Provide Relief May be Dismissed under Anti-SLAPP Law

Posted by Dowling Aaron on

Disputes between members of a homeowners’ association and its governing board are common and, not infrequently, lead to litigation. In Country Side Villas Homeowners Association v. Ivie (2011) (2011 DJDAR 4358) the Sixth Appellate District considered such a case and concluded that the association’s declaratory relief action against a disputatious member was subject to dismissal […]

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US Supreme Court Interprets FLSA’s Forbidding Retaliation Against Employee Who “Filed Any Complaint” To Include Oral Expression

Posted by Steven Vartabedian on

In this posting, I venture out from my relative comfort zone of California appellate law into the world of federal statutory interpretation conducted by the United States Supreme Court. Petitioner Kevin Kasten sued his former employer, respondent, for retaliatory termination, claiming he had been retaliated against for complaining about the location of the business’s timeclocks […]

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Interested Beneficiary May Act As Personal Representative of Estate in Will Contest Under California Probate Code

Posted by Steven Vartabedian on

Wills, Trusts & Estates Prof Blog (December 30, 2010) quotes Voltaire concerning the advantages animals have over humans; one advantage is “no one starts lawsuits over wills.” In Estate of Bartsch ( filed March 22, 2011) 2011DJDAR 4140, Norman Bartsch Herterich claimed he was the decedent’s only son and sole heir to the entire estate […]

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Plaintiff’s Future Medical Damage Award For Tortious Transmission Of Herpes Must Be Based On Substantial Evidence, But Punitive Damages Award Was Not Excessive

Posted by Steven Vartabedian on

After receiving a $6.75 million Riverside County Superior Court jury verdict against him for tortiously transmitting genital herpes to his ex-girlfriend, Aussie hair care products founder Thomas Redmond appealed. In Behr v. Redmond (filed March 2, 2011, certified for publication on March 14, 2011) 2011 DJDAR 3795, the California Court of Appeal, Fourth Appellate District, […]

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School District Employer Claiming Wrongfully Discharged Employee Failed to Mitigate Damages Must Show Comparable Position Was Available

Posted by Steven Vartabedian on

When I was a California trial judge years ago, I became very familiar with the “two beer” defense in driving-under-the-influence cases. Regardless what evidence was put on by the prosecution of the defendant’s intoxication, many a defendant would take the witness stand and testify, “All I had to drink was two beers.” In contrast, the […]

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Party’s Strategic Use of Arbitration Clause in Gaining Discovery Advantage Constitutes Unreasonable Delay and Waives Arbitration

Posted by Steven Vartabedian on

In a classic case of trying to “have ones cake and eat it too,” the plaintiff in Augusta v. Keene & Associates (filed March 4, 2011) 2011 DJDAR 3449 petitioned to compel arbitration where the arbitration clause included a ban on discovery. Plaintiff had filed his complaint alleging legal malpractice nine months earlier without invoking […]

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Appellate Review: Are Some Cases Getting Decided Less on Principles of Limited Review and More Based on Expediency of Result?

Posted by Steven Vartabedian on

In my previous “career” as a justice on the California Court of Appeal, Fifth Appellate District, where I served for 21 years, I found there were times in deciding cases that the temptation arose to dispose of matters based on my instincts of the merits of a case rather than the standard of appellate review […]

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The Stretching of California’s Anti-SLAPP Statute: Are Appellate Tribunals Becoming Triers of Fact?

Posted by Steven Vartabedian on

In Tamkin v. CBS Broadcasting, Inc.(filed March 1, 2011) 2011 DJDAR 3285, CBS writer Sarah Goldfinger had offered to purchase a home from sellers represented by real estate agents Scott and Melinda Tamkin, husband and wife. Goldfinger cancelled the transactions based on the expense it would take to remedy problems revealed by a home inspection. […]

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The Risky Business of Judges and Counsel, Both Trial and Appellate, Predicting How the Supreme Court Will Decide An Undecided Issue, Such as Award for Reasonable Value of Negotiated Medical Services

Posted by Steven Vartabedian on

In my last posting, I discussed the recently published appellate court opinion in Cabrera. Part of the rationale of that opinion was that the court was following “current” California published case law. My question is how should judges and attorneys handle legal authority that may appear shaky based upon currently pending cases before higher authority? […]

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